A Bill to amend and reenact §61-7A-2 and §61-7A-5 of the Code of
West Virginia, 1931, as amended, all relating to the state
mental health registry generally; clarifying that only final
commitments for treatment be reported to the registry;
complying with federal requirements relating to petitions for
relief from prohibition against possessing a firearm;
increasing information to be provided by petitioners;
expanding the factors to be considered by a reviewing court;
and expanding the findings a court must make in granting a
petition.Be it enacted by the Legislatureof West Virginia:

That §61-7A-2 and §61-7A-5 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:

As used in this article and as the terms are deemed to mean in
18 U.S.C. §922(g) and section seven, article seven of this chapter
as each exists as of January 31, 2008:

(1) “A person adjudicated as a mental defective” means a
person who has been determined by a duly authorized court,
tribunal, board or other entity to be mentally ill to the point
where he or she has been found to be incompetent to stand trial due
to mental illness or insanity, has been found not guilty in a
criminal proceeding by reason of mental illness or insanity or has
been determined to be unable to handle his or her own affairs due
to mental illness or insanity.

(2) “Committed to a mental institution” means to have been
involuntarily committed for treatment pursuant to the provisions of
chapter twenty-seven of this code by virtue of a final order of
commitment.

(3) “Mental institution” means any facility or part of a
facility used for the treatment of persons committed for treatment
of mental illness or addiction.

§61-7A-5. Petition to regain right to possess firearms.

(a) Any person who is prohibited from possessing a firearm
pursuant to the provisions of section seven, article seven of this
chapter or by provisions of federal law by virtue solely of having
previously been adjudicated to be mentally defective or to having
a prior involuntary commitment to a mental institution pursuant to
chapter twenty-seven of this code may petition the circuit court of
the county of his or her residence to regain the ability to
lawfully possess a firearm. Petitioners prohibited from possession
of firearms due to a mental health disability, must include in the
petition for relief from disability: (1) A listing of facilities
and location addresses of all prior mental health treatment
received by petitioner; (2) an authorization, signed by the
petitioner, for release of mental health records to the prosecuting
attorney of the county; and (3) a verified certificate of mental
health examination by a licensed psychologist or psychiatrist
occurring within thirty days prior to filing of the petition which
supports that the petitioner is competent and not likely to act in
a manner dangerous to public safety. The court may only consider
petitions for relief due to mental health adjudications or
commitments that occurred in this state, and only give the relief
specifically requested in the petition. In determining whether to
grant the petition, the court shall receive and consider at a
minimum evidence: (i) Concerning the circumstances regarding the
firearms disabilities imposed by 18 U.S.C. §922(g)(4); (ii) the
petitioner’s record which must include the petitioner’s mental
health and criminal history records; and (iii) the petitioner’s
reputation developed through character witness statements,
testimony, or other character evidence. If the court finds by
clear and convincing evidence that the person is competent and
capable of exercising the responsibilities concomitant with the
possession of a firearm, will not be likely to act in a manner
dangerous to public safety, and that granting the relief will not
be contrary to public interest, the court may enter an order
allowing the petitioner to possess a firearm. If the order denies
petitioner’s ability to possess a firearm, the petitioner may
appeal the denial, which appeal is to include the record of the
circuit court rendering the decision.

(b) All proceedings for relief to regain firearm or ammunition
rights shall be reported or recorded and maintained for review.

(c) The prosecuting attorney or one of his or her assistants
shall represent the state in all proceedings for relief to regain
firearm rights and provide the court the petitioner’s criminal
history records.

(d) The written petition, certificate, mental health or
substance abuse treatment records and any papers or documents
containing substance abuse or mental health information of the
petitioner, filed with the circuit court, are confidential. These
documents may not be open to inspection by any person other than
the prosecuting attorney or one of his or her assistants only for
purposes of representing the state in and during these proceedings
and by the petitioner and his or her counsel. No other person may
inspect these documents, except upon authorization of the
petitioner or his or her legal representative or by order of the
court, and these records may not be published except upon the
authorization of the petitioner or his or her legal representative.(b)(e) The circuit clerk of each county shall provide the
Superintendent of the West Virginia State Police, or his or her
designee, and the Administrator of the West Virginia Supreme Court
of Appeals, or his or her designee, with a certified copy of any
order entered pursuant to the provisions of this section which
removes a petitioner’s prohibition to possess firearms. If the
order restores the petitioner's ability to possess a firearm,
petitioner's name shall be promptly removed from the central state
mental health registry and the superintendent or administrator
shall forthwith inform the Federal Bureau of Investigation, the
United States Attorney General, or other federal entity operating
the National Instant Criminal Background Check System of the court
action.

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(NOTE: The purpose of this bill is to amend the procedure for
petitioning to regain the right to possess firearms to comply with
the minimum criteria to establish qualifying mental health relief
from firearms disabilities under the NICS Improvement Act of 2007
(NIAA) Public Law 110-180, Section 105, enacted on January 8, 2008,
to allow the removal of individuals from the federal NICS Index who
have been adjudicated in West Virginia to regain their right to
possess firearms.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)